Daily Insurance: Wednesday, 9 September 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Hawkins v Ross Human Directions Ltd (NSWCA) - negligence - employee injured while lifting boxes to return them to storage - employer not liable - appeal dismissed
AAI Ltd v Fitzpatrick (No 2) (NSWSC) - costs - no departure from usual rule that costs follow event - no power to issue certificate under Suitors’ Fund Act 1951 (NSW)
Acteon Middle East Fze t/as Team Energy Dubai v Smith (QSC) - private international law - application granted to register judgment obtained in Norwich County Court England
Haynes v St George Bank a Division Of Westpac Banking Corporation (SASC) - pleadings - contract - late application to amend statement of claim granted
Sims v Suda Ltd [No 2] (WASCA) - security for costs - employment contract - indemnity clause - respondent granted security for costs of appeal
Summaries With Link (Five Minute Read)
Hawkins v Ross Human Directions Ltd [2015] NSWCA 265
Court of Appeal of New South Wales
Gleeson & Leeming JJA; Beech-Jones J
Negligence - employee injured while lifting boxes to return them to storage - system of work involved lifting boxes of up to 9.8 kg - primary judge found box lifted by employee weighed no more than 7 kg - primary judge found employer not negligent - employee contended primary judge failed to consider evidence she had to bend and twist at the same time while lifting boxes, that there was failure to consider or properly to consider aspects of the evidence, and that primary judge erred in finding there was no requirement to keep runners present until all boxes put away - whether employee established breach of duty - whether real risk of injury in employee lifting boxes weighing no more than 9.8 kg - r51.53 Uniform Civil Procedure Rules 2005 (NSW) - held: error established in some of primary judge’s reasoning - however no substantial miscarriage of justice arising from errors - breach of duty not established - even if breach established it remained difficult to see how employee could establish causation - appeal dismissed.
AAI Ltd v Fitzpatrick (No 2) [2015] NSWSC 1272
Supreme Court of New South Wales
Schmidt J
Costs - Court gave judgment for AAI - first defendant sought departure from usual order that costs follow event - first defendant contended AAI succeeded on case which was materially different to case advanced in summons and that given proceedings brought under s69 Supreme Court Act 1970 (NSW) parties’ relative positions irrelevant - first defendant claimed AAI was stakeholder CTP insurer and he was private person not responsible for decision makers’ errors but had acted to provide contradicter - held: no misconduct by AAI established - AAI’s case in summons was clearly strong - decision actively to oppose application for judicial review carried risk of costs order being made against first defendant - no proper basis for any departure from usual order - AAI did not oppose first defendant’s claim for certificate under Suitors’ Fund Act 1951 (NSW) - proceedings were not appeal proceedings and did not concern the decision of a court - Court not empowered to issue certificate under s6 Suitors’ Fund Act.
Acteon Middle East Fze t/as Team Energy Dubai v Smith [2015] QSC 265
Supreme Court of Queensland
P Lyons J
Private international law - applicant obtained default judgment against respondent in Norwich County Court, England - Acteon sought to register judgment under Foreign Judgments Act 1991 (Cth) - held: Court was the ‘appropriate Court’ under s6(2) - Pt 2 applied to County Courts of England - Court satisfied that judgment of Norwich County Court was a final and conclusive judgment for purposes of s 5(4) - judgment was enforceable - Pt 2 applied to judgment - s6(3) required Court to order that judgment be registered subject to Act’s requirements and to proof of matters prescribed by applicable rules of Court - affidavit with application generally complied with r947E Uniform Civil Procedure Rules 1999 (Qld) - judgment to be registered with amount expressed in pounds sterling.
Haynes v St George Bank a Division Of Westpac Banking Corporation [2015] SASC 136
Supreme Court of South Australia
Nicholson J
Pleadings - plaintiff brought late application to amend statement of claim to permit him to rely on new particular of breach of contract - application made when plaintiff’s case at trial was nearing end - justice of the case - fair trial - held: amendment would likely have significant costs consequences for parties - Court not satisfied potential argument being pursued had earlier come to plaintiff’s attention at all or sufficiently to preclude him from relying on it now - Court satisfied delay largely contributed to by exigencies of this litigation - potential importance of proposed amendment was significant - significance of proposed case outweighed prejudice to bank - application granted.
Sims v Suda Ltd [No 2] [2015] WASCA 180
Court of Appeal of Western Australia
McLure P & Newnes JA
Security for costs - appellant claimed damages for alleged breach by respondent of an indemnity clause in the appellant's contract of employment - action dismissed - respondent sought security for its costs of appeal - r44(1) Supreme Court (Court of Appeal) Rules 2005 (WA) - held: Court satisfied appellant unlikely to be able to meet order for costs if appeal unsuccessful - appellant did not have strong prospects of success - appellant would not be shut out of appeal if security for costs ordered - no material delay by respondent in applying for security for costs - respondent entitled to security for costs - security for costs ordered.